This is a bill for the partition of real estate, in which the female plaintiff claims one undivided eighth as heir to her daughter, Felipa Benicia, who died an infant, without issue. This daughter got her title under the will of Thomas Jos e Ramirez, and the question is whether, in the event which happened, her share went to her mother by descent or to her fellow devisees by the terms of the will. The other devisees all were living at her death. The case was heard upon a plea setting up the foregoing facts, together with the will, and the bill was dismissed. Thereupon the plaintiffs appealed to this court.

2

The material clause of the will is as follows: 'Trece.—El remanente de mis bienes, derechos, y acciones, lo lego con calidad de fideicomiso, y que acrezcan las demas, caso de fallecimiento sin sucesi on legitima, por iguales partes, a mis sobrinas Dona Cornelia y Dona Antonia Martinez, Dona Monserrate, Dona Obdulia, Dona Encarnaci on, Dona Angela, y Dona Concesi on Ramirez de Arellano y Felipa Benicia, mi hija de crianza,' etc. We vary slightly the translation in the record. 'The remainder of my goods, rights, and actions I bequeath in the character of fidei-commissum and that the other [shares] may [profit by] accretion, in case of death without sucesi on legitima, by equal parts to my nieces [named] and Felipa Benicia, my foster child, who shall adopt my surname,' with appointment of a guardian for the last, a provision for her education, and a request that when that is finished she return to live with the said nieces.

3

It is agreed that it is possible for sucesi on legitima to mean either issue or lawful heirs. If it means the latter, the mother inherited, as she was the lawful heir. If it means the former, then, by the terms of the will, Felipa Benicia's share went to the testator's nieces when she died. It seems to us too plain to need extended elucidation that sucesi on legitima here means issue. The argument on the other side, that the purpose is merely to prevent an escheat by making the nieces and Felipa Benicia reciprocal successors, to impose a fetter on free alienation, and to enhance the dowry of the nieces, strikes us as fanciful. The natural object of this fidei-commissary substitution is that which is said to be its object,—to secure accretion among the shares. But that purpose would pretty nearly vanish into thin air if death without heirs were the event in view. For each of the nieces being heir to all the others, accretion among them would be excluded. It is argued, to be sure, that they might requdiate the inheritance and then claim under the will, if any of the nieces died heavily in debt. Whether this would be true by Spanish law we need not inquire. For such remote explanations must be rejected when the will offers a different and more obvious one upon its face. And while it is pressed that substitutions are strictly construed in favor of the first taker, we do not understand that or any other rule of construction to require a perversion of language, or to govern a case where the second taker stands on an equal footing with the first in the testator's mind, with equal mutual chances, and when the plainly expressed purpose is to create an artificial class, with cross limitations in case of death without a child.

4

A suggestion is made by an afterthought, in a brief filed since the argument, that the testator could not exclude the mother of Felipa from her right, as necessary or forced heir, to two thirds of Felipa's share. The suggestion comes too late. No such claim was set up in the bill, or, so far as appears, in the court below. Therefore, we shall not consider at length whether, in case of a pure gratuity to one to whom the testator was under no legal obligation, the Spanish law entitled a forced heir to claim against the words of a gift like this. The texts cited are not sufficient to establish the proposition, and the contrary seems to be shown by Ley 10, titulo 4, part. 6, and note 13, Madrid ed. 1848. See also 4 Escriche, 1051, 1052, sub. v. Substituci on Fideicomisaria, ad fin. On the whole case the plaintiffs must abide by the construction and the law, in which, it would seem from the bill, they have acquiesced for thirty years.